IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15109 of 2008(W)
1. P.V.THAMPAN, 'SREEDEVI', HEAD CLERK,
... Petitioner
Vs
1. THE COMMISSIONER FOR RURAL DEVELOPMENT,
... Respondent
2. GOVERNMENT OF KERALA,
For Petitioner :SRI.P.RAVINDRAN (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :12/11/2008
O R D E R
P.N.RAVINDRAN, J.
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W.P.(C.) No.15109 of 2008
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Dated, this the 12th day of November, 2008
J U D G M E N T
The petitioner, who retired from service on 31/12/2007
on attaining the age of superannuation, has filed this writ
petition aggrieved by the delay in disbursement of the
retirement benefits. The brief facts of the case are as
follows :-
While the petitioner was working as Head Clerk in the
Block Development Office at Sultan Bathery, the
Commissioner for Rural Development placed him under
suspension by Ext.P1 order dated 05/07/2006, pending
detailed enquiry. The petitioner challenged the order of
suspension in WP(C) No.19073 of 2006. While the said writ
petition was pending, an enquiry into the grounds of
suspension was held by the Joint Development
Commissioner, pursuant to the directions issued by the
Commissioner for Rural Development in Ext.P3. The enquiry
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officer gave notice to the petitioner, conducted an enquiry
and submitted his report on 25/08/2006 to the
Commissioner for Rural Development. The Commissioner
for Rural Development considered the report of enquiry and
decided to revoke the order of suspension. He, thereupon,
passed Ext.P6 order dated 20/12/2006 reinstating the
petitioner in service without prejudice to the continuance of
the disciplinary action initiated against him. The petitioner
was also posted in Wayanad district. A day after Ext.P6
order was issued, WP(C) No.19073 of 2006 was heard and
allowed by Ext.P2 judgment. This Court called for the files
and also the report of enquiry submitted by the Joint
Development Commissioner and held that the action of the
respondents in placing the petitioner under suspension is
patently unjust and an abuse of the statutory and
administrative power vested in them. The order placing the
petitioner under suspension was declared to be arbitrary,
was quashed and the respondents were directed to
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regularize the period during which the petitioner was kept
out of service in accordance with law. Ext.P2 judgment has
become final.
2. Thereafter, Ext.P7 memo of charges dated
02/06/2007 was served on the petitioner. He submitted
Ext.P8 reply dated 27/06/2007 and shortly thereafter,
retired from service on 31/12/2007 on attaining the age of
superannuation. Before the petitioner retired from service,
the disciplinary action initiated against him was not
finalized. It is aggrieved by the delay in finalization of the
disciplinary proceedings and non-payment of pensionary
benefits, that the petitioner filed this writ petition.
3. The respondents have filed a counter affidavit
resisting the writ petition and contending, inter alia that
terminal benefits can be sanctioned and disbursed to the
petitioner only after the disciplinary proceedings are
finalized. The petitioner has along with I.A.No.13508 of
2008 produced Ext.P9 order dated 13/08/2008 issued by the
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Senior Administrative Officer of the Commissionerate of
Rural Development, whereby the disciplinary action initiated
against the petitioner was finalized by directing recovery of
an amount equal to one increment without cumulative effect
from the DCRG of the petitioner. Ext.P9 further directs that
orders regularizing the period of suspension will be issued
separately.
4. When the writ petition came up for hearing today,
Shri.P.Ravindran, learned senior counsel appearing for the
petitioner submitted that the petitioner does not wish to
challenge Ext.P9 and that as the disciplinary proceedings
initiated against the petitioner have been finalized, the
respondents may be directed to sanction and disburse the
terminal benefits payable to him. Per contra,
Smt.T.B.Remani, the learned Government Pleader submitted
that terminal benefits can be sanctioned and disbursed to
the petitioner only after the period of suspension is
regularized. It was submitted that since a minor
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punishment of barring of one increment without cumulative
effect was imposed on the petitioner, the petitioner cannot
claim that he is exonerated of the charges and therefore,
the disciplinary authority can regularize the period of
suspension on terms, which it thinks fit to impose. The
learned Government Pleader submitted that so long as
orders regularizing the period of suspension have not been
issued, the petitioner cannot claim payment of terminal
benefits.
5. From the pleadings and the materials on the
record, it is evident that the disciplinary proceedings
initiated against the petitioner have been finalised with the
passing of Ext.P9 order. Though after 31/12/2007, the
disciplinary authority could not have imposed any
punishment, the petitioner has fairly and graciously
conceded that he does not propose to challenge Ext.P9. The
only prayer made by the petitioner is that accepting Ext.P9,
the terminal benefits, which he is entitled to, may be
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sanctioned and disbursed after recovering the monetary
value of one increment without cumulative effect. The
stand taken by the respondents is that terminal benefits can
be sanctioned and disbursed only after orders regularizing
the period of suspension are passed. The respondents
further contend that the disciplinary authority has got wide
discretion in the matter of regularizing the period of
suspension and the quantum of terminal benefit, which the
petitioner is entitled to would depend on the nature of the
order to be passed by the disciplinary authority regularizing
the period of suspension. In other words, the stand taken
by the respondents is that notwithstanding the findings of
this Court in Ext.P2 judgment, they have the absolute
discretion in the matter of regularizing the period of
suspension.
6. Though the petitioner was suspended by Ext.P1
order dated 05/07/2006, this Court after calling for and
perusing the records, entered a finding against the
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respondents and in favour of the petitioner that the order of
suspension was wholly unwarranted and was uncalled for.
Ext.P2 judgment has become final. The operative portion of
Ext.P2 judgment reads as follows :-
“16. The respondents have not denied or
controverted the averments in the writ petition. Nothing
has been stated in answer to the apparently discriminatory
and arbitrary action of the respondents in singling out the
petitioner alone for hostile treatment. I have no hesitation
to hold that the action of the respondents is patently
unjust and is tantamount to abuse of the statutory and
administrative power vested in them. The impugned
action offends Article 14 of the Constitution of India, being
ex facie arbitrary.
17. Ext.P1 is liable to be quashed for reasons
stated above. It is essential in the interest of justice to
direct respondents 1 & 3 by the issuance of a writ of
mandamus to reinstate the petitioner forthwith. I do so.
The period during, which the petitioner was kept out of
service shall be regularised in accordance with law.”
7. In the light of the findings in Ext.P2 judgment,
which has become final, the respondents cannot contend
that they have any discretion in the matter of regularizing
the period during which the petitioner was under
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suspension. In the light of the findings in Ext.P2 judgment,
the disciplinary authority cannot take the stand that the
order placing the petitioner under suspension was warranted
or called for. This Court has in categorical terms held in
Ext.P2 judgment that the action of the respondents in
placing the petitioner under suspension is an abuse of the
statutory and administrative power vested in them. Such
being the situation, the respondents have no other
alternative but to consider the period during which the
petitioner was placed under suspension “as duty” for all
purposes including salary and allowances and payment of
terminal benefits.
8. Ext.P2 judgment was delivered on 21/12/2006.
Though no time limit was fixed therein for passing orders
regarding regularization of the period of suspension, the
disciplinary authority ought to have considered the same at
least when it passed Ext.P9 order on 13/08/2008. In the
light of the findings in Ext.P2 judgment, the respondents
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were not entitled to take further time to pass orders
regarding regularization of the period of suspension. They
ought to have taking note of the fact that the petitioner is
not in service and had retired about seven months back
complied with the directions in Ext.P2 judgment,
simultaneous with the passing of Ext.P9.
9. For the reasons stated above, I hold that
petitioner is entitled to payment of terminal benefits by
treating the period during which he was placed under
suspension by Ext.P1 order “as duty” for all purposes
including payment of salary and allowances and payment of
terminal benefits. The respondents shall within two months
from the date of receipt of a copy of this judgment compute
the terminal benefits payable to the petitioner on that basis,
and disburse the same to him within a period of two months
thereafter. The respondents shall also compute and pay the
arrears of salary, which petitioner was entitled to during the
period when he was under suspension. Payment of arrears
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of salary shall also be made within the said period.
10. It is clarified that if the above directions are not
complied with and the terminal benefits are not paid to the
petitioner within the aforesaid period of four months, the
petitioner will be entitled to interest at the rate of 7.5% per
annum from 01/09/2008 till the date of payment. It will be
open to the Government to recover the interest portion from
the officers responsible for the delay in complying with the
directions issued herein.
(P.N.RAVINDRAN, JUDGE)
jg